Anna-Marie Bates v Sstar Hr International Pty Ltd

[2024] FWC 974

[2024] FWC 974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Anna-Marie Bates
v

Sstar HR International Pty Ltd

(C2024/1429)

VICE PRESIDENT CATANZARITI SYDNEY, 16 APRIL 2024

Application to deal with contraventions involving dismissal

1. On 1 March 2024, Ms Anna-Marie Bates (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that she was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was incomplete insofar as the Respondent details were not filled out. Moreover, the application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the filing fee (the waiver application). The Applicant, nor their representative, Employee Dismissals, has responded to correspondence from the Fair Work Commission (the Commission), alerting them to these deficiencies, nor have they been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 10 March 2024, the Commission sent an application acknowledgement letter and an incomplete letter to the Applicant and their representative.

1. The Commission attempted to call the Applicant, and their representative, on 25 March 2024, on their nominated phone numbers. A voice message was left quoting the matter number and provided a callback number for the Commission.

1. Another call was made to the Applicant on 27 March 2024, and a voice message left advising the matter is at risk of being dismissed, the matter number was provided and the telephone number to call back.

2. The matter was referred to my Chambers on 27 March 2024, and another attempt to contact the Applicant and their representative was made on that day.

3. A final notice email was sent to the Applicant and their representative on 27 March 2024 requesting a response to the missing Respondent’s details and payment of the required lodgement fee, or alternatively a waiver application, to be made by 5 April 2024.

1. On 27 March 2024 the Applicant emailed my Chambers to advise that she is having payment issues and was unsure about the case filed.

2. A telephone call was made to the Applicant on 28 March 2024, however there was no answer and a voice message was left advising that payment of the application fee, or lodging a waiver form, is required to progress the application. A follow-up email was sent to the Applicant with a waiver form, and a copy of her application attached, requesting a response by 5 April 2024, and if no response is received the matter will be dismissed.

3. No response was received on 5 April 2024, a telephone call was made to the Applicant on 8 April 2024, my Chambers spoke with the Applicant who was still unsure about the application lodged, the Applicant was referred to her representative and also provided with a contact number for a Community Legal Service to obtain advice.  The Applicant was given until close of business on 12 April 2024 to respond.

1. To date, the Applicant has not paid the required lodgement fee or filed a waiver application, or provided any other response.

Legislative framework

1. In relation to an application made pursuant to s.365 of the Act, s.367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

   “587      Dismissing applications

   (1)       Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a)       the application is not made in accordance with this Act; or

(b)       the application is frivolous or vexatious; or

(c)       the application has no reasonable prospects of success.

Note:   For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a)       is frivolous or vexatious; or

(b)       has no reasonable prospects of success.

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

Consideration and conclusion

1. The Applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. The Applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

2. The application is dismissed.

VICE PRESIDENT

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